Grand justices too timid in review

By Huang Cheng-yi 黃丞儀

Among the world’s new democracies, South Africa is perhaps the most devoted to safeguarding socioeconomic rights. In its judgement on the famous Grootboom case, South Africa’s Constitutional Court held that the right to housing was not purely a matter of quantitative satisfaction, but also had to do with “qualitative questions.” It said that providing a living environment in keeping with human dignity was a major obligation imposed on the government by South Africa’s constitution. In their recent interpretation, the Council of Grand Justices only considered the question of the threshold for property owners’ agreement to urban renewal projects. They have missed the wood for the trees.

When urban renewal projects are being drawn up, is it not possible to find an orientation that is in keeping with human dignity and that can satisfy demands for a good living environment, to avoid sacrificing the rights of minorities by putting the single value of economic interests above everything else?

This is an area that is beyond the reach of lines of argument about property rights, and it is precisely the area in which the right to adequate housing could come into play. It is, therefore, highly regrettable that the grand justices chose not to venture into this area.

Nevertheless, in their interpretation, the grand justices criticize the practice that is seen in most administrative procedures of using public hearings as a way of actually getting around giving the various parties a proper hearing. They say that, since all kinds of complicated interests and specialist considerations are involved, public hearings should be held when urban renewal projects are being appraised, and that such projects should only be decided upon after weighing up all the minutes from these public hearings, with records of the reasoning behind the decision appended.

One aspect of the Administrative Procedure Act that has come in for a lot of criticism is that its language regarding public hearings is very rudimentary.

When the procedure is not fair, it will detract from the public’s sense of trust in administrative decisions, and it will make nonsense of “due process of administration.” Public distrust of the government and interminable disputes between interest groups — is this not quite an accurate description of the way the government runs this country these days?

The Council of Grand Justices does indeed deserve praise when it is willing to take on major issues of public concern, but Interpretation No. 709 is by no means a victory for those campaigning against the forced removals involved in urban renewal projects.

The Urban Renewal Act requires a threshold of agreement by 50 percent of owners of property in a renewal area for urban renewal projects to go ahead.

The grand justices’ interpretation finds this threshold to be constitutional, based on the principle of proportionality, and this finding lays a fuse that is likely to ignite many more urban renewal disputes in future.

Because the grand justices have been too timid to engage in lines of argument based on substantive justification to resolve conflicts of interest, their interpretation does not achieve as much as it otherwise might have done.